HHS transgender anti-discrimination rule kicks in July 18

A NAHAM member of our Public Policy and Government Relations Committee forwarded an article from Modern Healthcare, HHS transgender anti-discrimination rule kicks in July 18; Are you ready?

The article notes that providers will be expected to adhere to a new HHS policy against discriminating against patients based on their gender or gender identity.

"Starting [July 18], transgender people can enter bathrooms or hospital wards consistent with their gender identity. The rule does not explicitly require insurers to cover gender-transition treatments such as surgery."

The article questions whether providers are ready.

"In March, the [Human Rights Campaign] found that just 21% of U.S. hospitals it surveyed had specific policies outlining procedures and practices to eliminate bias and insensitivity toward transgender patients."

The rule empowers HHS to suspend or terminate federal funding to any organization that does not address noncompliance. HHS may also contact the U.S. Justice Department to determine if there's been a criminal offense.

The rule is authorized by Section 1557 of the Affordable Care Act. (ACA) and was issued by HHS on May 13, 2016.  See HHS finalizes rule to improve health equity under the Affordable Care Act.

The Section 1557 nondiscrimination provision prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.

As described by HHS, "Section 1557 builds on long-standing and familiar Federal civil rights laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975." 

Applicable to providers and insurers, the provisions protect individuals participating in healthcare programs that receive HHS funding, any program HHS administers, and insurance plans offered through the Health Insurance Marketplaces established by the ACA.

A summary of the final rule, Summary: Final Rule Implementing Section 1557 of the Affordable Care Act, indicates -

"While the final rule does not resolve whether discrimination on the basis of an individual's sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR [Office of Civil Rights] will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under Section 1557. HHS supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue."